This case will blow your mind.

Bonnie O’Daniel was a Human Resources manager (remember that!) at a workplace in Louisiana. One day in April 2016, she went shopping at a well-known national retail store and encountered a transgender woman in the dressing rooms. Ms. O’Daniel took a picture of the transgender woman and posted it to Facebook, along with the following:

So meet ROBERTa! Shopping in the women’s department for a swimsuit at the [Baton Rouge store]. For all of you people who say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there. #hellwilllfreezeoverfirst.

Note that she refers to the transgender person as “it” and “this.” Nice, coming from an HR manager, huh?

Ms. O’Daniel’s co-workers shared her Facebook post with her bosses, one of whom is reportedly a lesbian. The bosses required Ms. O’Daniel to get sensitivity training, and she was reprimanded. At some point, Ms. O’Daniel complained that she believed she was being discriminated against because she was heterosexual, and she threatened to file a “formal complaint.” Shortly afterward, she was let go in a reduction in force.

She sued, asserting a number of claims but most significantly Title VII “sex” discrimination and retaliation based on her heterosexual status. A federal magistrate in Louisiana dismissed her case at the beginning stages. With respect to the Title VII claims, the U.S. Court of Appeals for the Fifth Circuit (unlike the Second and Seventh Circuits) says that Title VII does not apply to claims of discrimination based on sexual orientation.

Ms. O’Daniel appealed the magistrate’s ruling to the Fifth Circuit.

Then things really got weird.

In her brief, Ms. O’Daniel seemed to be asking the full Fifth Circuit to overrule its precedent and find that Title VII prohibits sexual orientation discrimination. 

Why would someone who was so apparently hostile to transgender individuals (and, based on the allegations of her lawsuit, also hostile toward her lesbian boss) want to claim that sexual orientation is a protected category under Title VII? 

Even weirder, at least at first glance, is the fact that the Equal Employment Opportunity Commission and a number of LGBT rights organizations* filed amicus (friend of the court) briefs “in support of neither party” but kinda sorta on the side of Ms. O’Daniel.

*In addition to the EEOC’s brief, an amicus brief was filed jointly by the American Civil Liberties Union (national and Louisiana foundations); GLBTQ Legal Advocates & Defenders, Inc.; the Lambda Legal Defense and Education Fund, Inc.; and the National Center for Lesbian Rights.

Strange bedfellows, indeed!

But, after you read the amicus briefs, the view of the EEOC and the LGBT groups makes some sense. It’s pretty clear that Ms. O’Daniel can’t plausibly claim that she was discriminated against for being heterosexual. She claimed in her lawsuit that she had a “great” relationship with her bosses before the Facebook posting. 

Plus, I’ll go out on a limb and bet that the majority of employees in good standing at this company are heterosexual.

Based on the EEOC’s brief, which has the best discussion of the aftermath of the Facebook post, it appears Ms. O’Daniel was not terminated until about two months later, after she threatened to file a “formal complaint” against the company.

So this is really a retaliation case.

Is objecting to “heterosexual discrimination” protected activity under Title VII?

Is a threat to file a “formal complaint” of “heterosexual discrimination” legally protected activity under Title VII? What if the relevant federal circuit has ruled that Title VII does not prohibit discrimination based on sexual orientation?

This is the only issue that brought in the EEOC and the LGBT rights groups into the case, despite what appears to be a very anti-LGBT plaintiff.

The EEOC and the LGBT groups each filed briefs arguing that — whatever the actual state of LGBT discrimination under Title VII — a reasonable person in 2016 could have mistakenly believed that Title VII prohibited discrimination “based on sexual orientation.” 

Therefore, a person could reasonably believe that “reverse” sexual orientation discrimination also violated Title VII. (And there is some legal authority supporting a theory of “reverse” sexual orientation discrimination.)

So far, I agree. When I conduct harassment and other types of training for management, I find that most people assume sexual orientation discrimination is against the law. They are surprised to learn that in many jurisdictions, it’s not covered by Title VII and there are no protections at the state level.

(I always advise employers to behave as if LGBT discrimination were illegal, even if it isn’t. It’s the right thing to do, and, as we all know, the law in this area is changing very rapidly.)

In addition, the EEOC has taken the position since 2015 that Title VII prohibits sexual orientation discrimination, and that position is readily available at the agency’s website. And even back in 2016 — before the landmark decisions in Hively v. Ivy Tech and Zarda v. Altitude Express (now Altitude Express v. Zarda) — some  lower federal courts were agreeing with the EEOC.

Mistaken but reasonable, good-faith belief

Under Title VII, an individual’s “opposition” activity is protected even if the individual is mistaken, as long as he or she has an objectively reasonable good-faith belief.

But even if Ms. O’Daniel had a reasonable belief that heterosexual discrimination violated Title VII, I don’t think she has a valid retaliation claim. As pointed out by the employer in its brief, arguably the mistaken belief has to be about something that is actually prohibited by Title VII to be “protected activity” under Title VII.

For example, let’s say I’m 18 years old. (I can dream, can’t I?) My boss gives me grief about something, and I say, “You can’t do that to me! You’re just picking on me because I’m young! I’m going to the EEOC!”

Then my boss fires me, and I claim he retaliated against me for engaging in activity protected by the Age Discrimination in Employment Act. Was it reasonable for me, as a layperson, to think the ADEA prohibits all age discrimination, and not just discrimination against people who are 40 and older? Arguably so. But I still don’t think I’d have a valid ADEA retaliation claim.

There’s a more significant concern I have about finding a valid “retaliation” claim based on the allegations in Ms. O’Daniel’s lawsuit.

Title VII prohibits race discrimination including reverse race discrimination, right? Let’s say that I, a Caucasian, post some racist content on Facebook that is seen by my co-workers. My overly indulgent employer doesn’t fire me but puts me on a final warning and requires me to undergo sensitivity training. Can I really plausibly claim that I’m being discriminated against for being white? And that my employer could be liable for retaliation if it fires me after I make such a ludicrous complaint?

That, to me, is the closest analogy to what happened in this case. Ms. O’Daniel had a right to her opinions about transgender individuals and which bathrooms and dressing rooms they should use, and maybe even a right to express her opinions in a respectful way. (Remember, though, that the First Amendment does not apply to private sector employers.)

But she expressed herself in a very nasty and unprofessional way on a forum that was seen by her co-workers and bosses. She also arguably violated the privacy of the transgender woman by taking her picture, presumably without her permission, and posting it on Facebook. This all is especially problematic in light of Ms. O’Daniel’s HR role. Even if the Supreme Court one day decides that Title VII prohibits discrimination based on sexual orientation, I don’t see how firing an employee under the circumstances of this case can be considered discriminatory or retaliatory.

You may ask, Well, gee, Robin, can an employee ever claim retaliation based on a reasonable good-faith mistake?

Absolutely. Here’s one scenario. Let’s say I’m being considered for a promotion along with some other people. Despite the fact that I am supremely qualified and I’m an internal candidate, my employer selects an outside candidate who is a man. I know that I’m supremely qualified, I know the employer is supposed to give priority to internal candidates, and so I honestly and somewhat reasonably believe that I lost out because I am a woman. I complain to HR and get fired for making that complaint.

While the company and I are duking it out at the EEOC, it comes to light that the man who got the job had some unique and invaluable experience that I didn’t have, and that made him more qualified even though he was an external candidate and even though I was really good.

If that turns out to have been the case, then I would lose on a sex discrimination claim. But I’d still have a valid retaliation claim based on my HR complaint because (1) Title VII prohibits sex discrimination, (2) I had an objectively reasonable good-faith belief that I was discriminated against because of my sex, and (3) I opposed an employment practice that, to all appearances, violated Title VII. And was fired for doing so.

And here’s an example showing the way that might work in the context of a reverse sexual orientation scenario. Let’s say I’m the only straight person in a workplace full of gay and lesbian employees. And I’m in the state of Illinois, where the courts have said that sexual orientation discrimination violates Title VII. 

My (gay) boss writes me up for using my cell phone at work. I see a (lesbian) co-worker using her cell phone all the time, and she’s never been disciplined. So I go to HR and complain that my boss is being harder on me because I’m straight — in other words, he’s guilty of reverse sexual orientation discrimination. A few days later, my boss “upgrades” my writeup to a final warning. 

I file an EEOC charge, and during the process it comes to light that my lesbian co-worker had a child in the intensive care unit at the local hospital and that she had been given a temporary dispensation to use her cell phone at work to check on her child. Everybody else in the company — regardless of sexual orientation — has been written up if they were caught using cell phones at work. I haven’t been singled out at all.

I would lose on my “reverse discrimination” claim, but I could still go forward on a Title VII retaliation claim based on my complaint to HR and the more severe disciplinary action taken afterward: 

  • First, because sexual orientation discrimination violates Title VII in the Seventh Circuit state of Illinois, presumably “reverse” sexual orientation discrimination would, too.
  • Second, because it was arguably reasonable for me to mistakenly believe that the employer was not consistently enforcing the no-cell-phone rule.
  • Third, because my co-worker and I are of different sexual orientations, it was arguably reasonable for me to believe that the perceived differential treatment was based on my sexual orientation.
  • Fourth, because my supervisor clearly took adverse action against me because of my complaint about unlawful discrimination.

Back to Ms. O’Daniel — posting cruel or embarrassing things about LGBT individuals on social media is not protected activity, and being disciplined for it is not “heterosexual discrimination.” If the employee complains when she suffers the consequences of her behavior, the courts should not say that she has engaged in “protected activity,” whether Title VII prohibits sexual orientation discrimination or not. 

For us law nerds, a recording of the oral argument from Wednesday is available on the Fifth Circuit website. (In the search field, use 1/9/2019 as the date. The case name is Bonnie O’Daniel v. Industrial Service Solutions.) If you listen, you will see why I am now officially Judge Catharina Haynes’ biggest fan.

Will this blog post never end?

I doubt that the EEOC or the LGBT advocates really care what happens to Ms. O’Daniel. They certainly don’t condone what she said on Facebook. Rather, I suspect they are trying to get a ruling that would primarily benefit gay and transgender employees in jurisdictions where sexual orientation discrimination doesn’t violate Title VII. A ruling in their favor on the “reasonable belief” issue would allow gay and transgender employees to assert Title VII retaliation claims whether LGBT discrimination actually violates Title VII or not.

I’ll be back on this once the court issues its decision.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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